A PCD client who stood trial on an accusation of sexual assault not only succeeded in having the trial stopped at half-time, whereupon the judge directed the jury to acquit our client, but he went on to be awarded nearly £18,000 for his costs to be paid by the CPS for having unjustifiably prosecuted him.
What is a half-time acquittal?
In all criminal cases, the burden rests upon the prosecution to prove its case. This is why the prosecution goes first in every trial, presenting all of its evidence before the accused person is invited to say anything in response. In rare cases, once all of the prosecution evidence has been heard, if that evidence appears too weak to support the allegation, or, rarer still, is altogether deficient in some essential aspect that the prosecution are required to establish, it is open to the defence to make a submission of ‘no case to answer’. Where this succeeds before the judge, the judge will withdraw the case from the jury, who are then required to give a verdict of not guilty to formally end the proceedings.
What happened in our client’s case?
A stranger accused our client of having sexually assaulted her in a public place by, she said, touching her bottom in a supermarket. Our client denied that he had touched her, but said that if he did, it was accidental and therefore certainly not sexual. The law says that ‘sexual’ means either by nature the act is sexual (as is, for example, intercourse), or by reference to the person’s purpose it is sexual (eg, if a foot fetishist touches another person’s foot for his own gratification that would be sexual by purpose). Our client said that he didn’t remember touching his supermarket accuser, but if he did it was not sexual by nature or by purpose. The CPS charged him, so must have thought it was.
The offence of sexual assault requires that the prosecution prove five separate aspects: person A touched person B, that the touching was intentional, that it was sexual, that person B did not consent to being touched, and that person A did not reasonably believe that person B consented. If the prosecution cannot prove all of those to the standard that the jury can be sure, then the whole allegation fails, and the defendant must be acquitted.
In our client’s case, in which the encounter between him and his accuser was caught on CCTV, after the close of the prosecution case the judge ruled that the evidence that he had touched the complainant was weak, but, she said, it was just enough for it to be right that the jury be asked to decide that point had that been the only difficultly in the prosecution case. However, the judge went on to rule that if the touch occurred at all (which the CCTV showed was certainly not to the complainant’s bottom, but, instead, if contact was made it was to her lower back), there was nevertheless no evidence that a touch of this kind was sexual. That essential point for the prosecution to prove being wholly absent from the Crown’s evidence, the whole allegation had to fail, and the jury were therefore directed to acquit.
Why has the CPS been ordered to pay our client’s costs?
Ordinarily, when a defendant is found not guilty by the jury, a defence costs order can be made by the judge, but the usual kind is one that is made under section 16 of the Prosecution of Offences Act 1985 in which the money comes from central funds, which is the government’s legal aid pot, not the prosecuting authority’s own budget. A section 16 order is also limited to legal aid rates.
In our client’s case, our barrister instead pursued an application under section 19 of the same Act, which allows an order to made against a party to the case who, by some unnecessary or improper act or omission, has caused the other party to incur wasted costs. A section 19 order can be for however much the judge considers appropriate, including for the whole amount that was wasted. However, the senior courts have repeatedly said that the bar to reach before a judge will make a section 19 order is very high. In Evans v SFO  EWHC 263 (QB), a judge of the High Court said:
“I consider that cases in which it will be appropriate to make (let alone grant) a section 19 application against a public prosecutor will be very rare, and restricted to those exceptional cases where the prosecution has made a clear and stark error as a result of which a defendant has incurred costs for which it is appropriate to compensate him”.
That quote shows how incredibly unusual it is to get an order under section 19, and other High Court judgments have emphasised that simply winning at half time is not enough to justify the making of a section 19 order; but, because section 19 is not limited only to legal aid rates, when it is made it is open to the judge to determine how much should be paid.
In our client’s case, the judge found that there was never any evidence to support the essential point of sexual, and that the police officer who interviewed our client did not seem to understand the legal definition of sexual. The judge also noted that the CPS had been alerted by us at the very earliest stage of the Crown Court case that there was no evidence of sexual, yet the CPS had carried on regardless. To have prosecuted our client under these circumstances, the judge found, was indeed a clear and stark error, for which it was only right that our client recover the whole of his legal expenditure for having had to defend a prosecution that the judge said should not have been brought to begin with.
PCD Solicitors instructed and worked with Damian Warburton of Holborn Chambers at every stage of this case.
"I have had a pretty rough time over the last two years and nearly ended my life, I was thankfully saved and I found PCD that took on my case.
I cannot thank them enough for the calm manner how they handled my case and me.
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